The Champion

March 2014 , Page 40

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Interviewing a Child Client

By Randee J. Waldman

In many respects, interviewing a child client shares many of the same characteristics as the interview of an adult client. As with all interviews, the basic goals of interviewing the child client can best be summarized as follows: (1) developing an effective relationship with the client and (2) acquiring an accurate account of the client’s situation, as well as an understanding of his or her wants and needs.1 However, an adolescent’s developmental characteristics provide a unique component to interviewing, communicating with, and counseling a child client.2 This article will break down these characteristics along the following domains, discussing each in turn: (1) language proficiency, (2) experience, (3) developmental level, (4) suggestibility and relation to authority, and (5) family and social context. The article will then provide practical tips for overcoming the unique challenges present in interviewing an adolescent.

Language Proficiency

Language proficiency among adolescent clients can vary greatly. As a general matter, though, juvenile clients have not yet developed adult narrative skills.3 As a result, in response to the common “tell me what happened” introduction to the interview, it is not uncommon to receive the following response: “I was walking to class and then I punched him and then I went to my class.” While the basics are here, this narrative is unlikely to provide an attorney with much to go on in formulating a defense. Was there a precipitating event to the punch? How was the client identified? Were there witnesses to the event? Did the client talk to anyone about what happened? A more thorough narrative would likely yield answers to at least some of these questions. However, with a juvenile, the defender will likely need to work a bit harder to obtain this information.

Similarly, adolescent clients are likely to have difficulty with long, complex questions, with complex negation within a question, and with complex vocabulary and legal jargon. They are also still developing the ability to understand inferences, abstract concepts, and sarcasm.4 Finally, it is important to note that, as compared to young people in the general population, adolescents involved in the juvenile justice system exhibit decreased communication skills5 and are more likely to have a speech and language impairment (either diagnosed or undiagnosed).6 At the same time, experience demonstrates that children are significantly less likely than adults to tell you that they don’t understand a question that you have just asked. Thus, it is likely that a client will be answering a different question than the one you have asked, leading to the sharing of misinformation.

Experience

Logically, the child client will have fewer experiences upon which to draw when facing the juvenile justice system. As a result, there is an increased likelihood that the child client will lack the knowledge and experience needed to understand all of the consequences of a given decision. The child client also may lack the knowledge and experience to weigh various options against one another. Accordingly, as a result of a lack of experience, it might be difficult for the child client to make a decision between accepting a plea and going to trial, or to decide whether to testify at a trial. Additionally, the lack of experience may also prevent a child client from understanding what type of information is necessary to share with his or her lawyer, leading to the omission of important facts.

Developmental Level

It is generally accepted that by late adolescence, children have obtained intellectual capabilities that are on par with their adult counterparts.7 However, these adult-like intellectual capabilities are often hampered by a greatly decreased level of psycho-social maturity. Adolescents often engage in present-oriented thinking. As a result, adolescents often seem unable to think about the future, or they discount the future and weigh more heavily the short-term risks and benefits of a decision.8 Compounding their present-orienting thinking, adolescents tend to be more impulsive than adults and engage in more risk-taking.9 Additionally, adolescents tend to have a belief that they are invulnerable and to believe in magical or wishful thinking.10 All of these characteristics could lead the child client to a different perception of risks involved in the decision-making process.

Some additional characteristics about adolescents will greatly impact the way in which the interview with a child client will need to be conducted. First, adolescents are often egocentric and self-conscious. Teenagers often believe that others are constantly watching and judging them.11 This could lead to a hostile reaction to any questioning seen as a judgment, such as, “why haven’t you been going to school every day?,” or even recommendations on how to dress for court, which could be seen as commentary on their ability to dress appropriately. The client might also be reluctant to share certain information if she or he believes that the attorney might judge the client’s actions. Second, adolescents have been referred to as “fairness freaks.”12 In the mind of an adolescent, behavior that might be illegal can often be justified by the child’s own sense of morality. Thus, explaining to child clients that they might be found “guilty” of the charged offense — when they do not believe they have done anything wrong — can be more difficult than explaining this to an adult offender. Finally, adolescents are especially loyal to family and friends. This could lead to a hostile reaction when the attorney is perceived to have said anything negative about either. Moreover, a child client is less likely to provide details to the attorney about additional participants in the alleged offense, even if doing so could result in decreased consequences for the client.

Suggestibility and Relation to Authority

Adolescents, particularly younger adolescents, tend to be more suggestible than adults. Leading questions, therefore, can often result in obtaining misinformation from the client. They can also lead to the client filling in gaps in information with facts provided through the questioning, even if they are doing so subconsciously. Additionally, adolescents are more likely to give responses that they think will please the adult questioner.

At the same time, however, the child client often comes to the initial interview with a general distrust of adults. As an initial matter, the child client likely did not choose to hire the attorney or to seek the assistance of a public defender. This decision was likely thrust upon the client by other adults. More importantly, the child client typically encounters adults who tell the client what to do, judge the client’s actions, and, in general, ignore the client’s opinions and input. It will be important to overcome this lack of trust throughout the representation.

Family and Social Context

The most glaring difference between the child client and the adult client is their position within society. The child client lives within a family context that is markedly different than the adult in that the relationship is custodial — the child has no choice in the living arrangement and is bound by certain societal expectations within the family environment. Similarly, the child client is often mandated to attend school, either through compulsory education laws or due to education requirements imposed by the court. Because courts are generally very interested in learning how the child client functions within these social contexts, the defender’s interview with the child client will need to focus on these areas as much as on the offense in question.

Engaged and supportive parents are essential to a successful outcome in a case with a juvenile client. Navigating this relationship, though, can be quite challenging. The defense attorney’s client is the child, not the parent. Parents, however, often come into the relationship with their child’s attorney with the belief that they should be completely involved in the representation — especially if they are the ones paying the attorney’s fees. From a practical perspective, this makes sense; parents are required to make all other decisions on behalf of their children. From a legal perspective, though, involving the parent completely can have many negative implications. First, the presence of a parent during the interview with the child breaks the attorney-client privilege in almost all jurisdictions. Second, the child client is much less likely to be truthful and forthcoming with information about both the offense and about social factors that will be relevant to disposition if the parent is present during the interview. Finally, parents have a tendency to dominate the conversation, speaking on behalf of the child, when they are present for the interview.

While it is important to interview the client alone, it is equally important not to alienate the parent. After all, the parent is likely the holder of a great deal of necessary information relating to the client, such as the client’s education and medical histories. The parent also likely holds the key to future access to the client, either through phone conversations or through additional client meetings. It is also likely that the client will want to consult with and seek advice from his or her parent when making important legal decisions. Finally, a cooperative parent who says positive things about the client is often vital to a good outcome of the child’s case.

Tips for Overcoming the Challenges in Interviewing A Child Client13

First and foremost, in interviewing a child client it is essential that attorneys adjust their expectations of the interview. While it is possible that the interview will be conducted without a hitch, that the client will be completely open and capable of providing all relevant pieces of information, it is equally likely that none of these things will happen. Counsel should be prepared for unorganized thinking, incomplete narratives, lack of specificity, and even some lack of cooperation or open hostility to counsel’s presence. When the lawyer counsels the client with respect to legal options, the lawyer should also anticipate that the client may ask the lawyer to make the decisions for him or her. The tips below address some of these issues.

Rapport Building

While rapport building is necessary with all clients, the inherent distrust of adults makes this an even more essential component of the child interview. One way to start an interview is simply to ask the client what the client wants the lawyer to call her or him. Then, instead of jumping straight to the details of the defense, the lawyer should spend some time trying to get to know the client and trying to learn about the client’s strengths and interests. To be effective, this needs to be more than a series of rote questions jotted down on a sheet of paper; children can tell when the attorney expresses a genuine interest as compared to when the attorney goes through a checklist of obligatory questions about interests. The difference can be as simple as the attorney making sure she engages in active listening and asks follow-up questions.

During the course of the interview, it is important to leave judgments out of the questions. For instance, rather than asking when they last used drugs (thereby assuming they have ever done so), let them know that their judge often administers a drug test in court and ask whether they will pass the drug test. As a simple guideline, counsel should try to avoid asking “why” and “how could you” questions.

Finally, counsel should make sure to use the interview to learn about the client’s concerns about the case or representation so that counsel can address these concerns.

Overcoming Language Development Barriers

As discussed above, complex language, legal jargon and legal concepts will be difficult for many clients. There are several techniques that are useful in effectively communicating with young clients. First, when explaining legal concepts, such as attorney-client privilege, make sure to assess the client’s understanding in an interactive manner. Without fail, if attorneys ask child clients if they understand what has just been explained, they will say “yes.” Rather than asking the question, then, attorneys should ask clients to repeat back the concept in their own words. This will give attorneys an opportunity to assess the level of understanding clients have and to fill in any gaps that may remain.

During the course of the questioning, counsel should keep the questions short, with language easily understood by the client. If counsel needs to use legal terms, she should provide the client with a simple definition of the term.

On the flip side, clients sometimes use language with which lawyers are unfamiliar. Just as lawyers must encourage clients to ask for clarification if they do not understand legal concepts, lawyers must also give themselves permission to ask their clients to define some of the terms that clients use. In general, clients appreciate it when lawyers show this honesty, and feel more at ease in asking for clarification when they need to do so.

Completing the Narrative

While there are many different techniques for interviewing clients, one of the most common interview techniques for interviewing a juvenile defendant is the T-Funnel method attributed to David Binder, Paul Bergman, and Susan Price.14 In this method, the lawyer starts the interview with broad open-ended questioning — “describe what happened on January 3.” This gives the client the opportunity to tell his or her entire account of events, without interruption. One of the benefits of this approach is that it allows the lawyer the opportunity to learn what the client thinks is important about the events. These open-ended questions are then followed up with narrower questions, designed to draw out additional facts on discrete topics within the narrative. During this second stage, it is important to continue to use open-ended questions to avoid suggesting answers to the client. Once the lawyer believes she has the entire version of events, she can repeat back her understanding of events to obtain clarification.

Even using this technique, the client is still going to have some difficulties filling in some details. For instance, child clients often have difficulty with time. Those who work with young clients regularly have probably learned that “a minute” can vary in length from several seconds to several years. It might be necessary for the lawyer to provide context clues to help pin down an exact time frame. For instance, if an incident happened at school, the lawyer can try to narrow things down to before lunch or after lunch. The lawyer can then further try to narrow things down to a specific class period.

An additional valuable technique is the use of visual aids. Many clients with language difficulties are more talented at drawing a diagram. This can significantly help clarify a confusing scene. If a location is relevant, counsel can consider coming to the interview prepared with a computer-generated map of the area in question, allowing the client to identify key spots.

Counseling the Client to Make the Difficult Decisions

Because of their developmental level, child clients often have a hard time making the important decisions in the course of representation, including whether to accept a plea deal or go to trial. Child clients often have a skewed opinion of their likelihood of success at trial as well as the potential outcome if they lose at trial. They are also used to deferring to the opinions of adults on such difficult decisions. Nonetheless, it is the obligation of the lawyer to make sure that the child client makes an informed decision, and that the decision is the client’s. One useful tool is to create charts or decision trees with the client. With respect to likelihood of success at trial, counsel can work with the client to make a chart of the evidence that the state will likely introduce at trial, followed by counsel’s response to all of that evidence along with any evidence to be introduced by the defense. Similarly, with respect to the decision to accept a plea deal, counsel can work with the client to create a pros / cons chart or decision tree. The lawyer should let the client hold on to these charts so that the client can reference them whenever necessary. When the client ultimately makes the decision, the lawyer should ask the client to explain the rationale so that the lawyer can tell that the client has fully understood the complexities of the situation.

Conclusion

When dealing with child clients, the model rules of professional conduct require that: “[w]hen a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority … the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”15

While a child client’s language proficiency, experience, developmental level, suggestibility, relation to authority and family and social context differ from that of an adult client, the adaptations to the interview process described above will assist in achieving the goal of maintaining a normal attorney-client relationship with the client. A successful interview will also enhance the likelihood of a favorable outcome for the client.

Notes

For an overview of how adolescent development can affect adult-child interactions, see Marty Beyer, A Developmental View of the Juvenile Justice System, in Juvenile Justice: Advancing Research, Policy, and Practice (Francine Sherman & Francine Jabobs, eds. 2011), available at http://www.martybeyer.com/user_files/documents/beyer-juvjus_chapter.pdf.

American Bar Ass’n Juvenile Justice Center, Kids are Different: How Knowledge of Adolescent Development Theory Can Aid Decision-Making in Court 9 (Laurdes Rosado ed., 2000), available at http://www.njdc.info/pdf/maca1.pdf.

About the Author

Randee J. Waldman is a Clinical Professor of Law and Director of the Barton Juvenile Defender Clinic at Emory University School of Law. Professor Waldman supervises law students in holistic representation of young people charged with delinquent offenses. She also teaches courses in juvenile justice and education law.